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EXHIBIT 3.6
AMENDED AND RESTATED
AUGUST 13, 1996
AMENDED AND RESTATED BY-LAWS
OF
MS ACQUISITION CORP.
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders of
MS Acquisition Corporation (the "Corporation") shall be held on such date, at
such time and at such place within or without the State of Delaware as may be
designated by the Board of Directors of the Corporation (the "Board of
Directors") or the Chairman in the absence of a designation by the Board of
Directors, for the purpose of electing Directors and for the transaction of
such other business as may be properly brought before the meeting.
SECTION 2. SPECIAL MEETINGS. A special meeting of the stockholders of
the Corporation may be called at any time by the Board of Directors and shall
be called by the Chairman, the Chief Executive Officer and President, the Chief
Financial Officer and Vice President - Finance or the Secretary at the request
in writing of stockholders holding together at least ten percent (10% ) of the
total number of issued and outstanding shares of the Corporation's Class A
Common Stock, par value $.01 per share ("Class A Common Stock"), and the
Corporation's Class B Common Stock, par value $.01 per share ("Class B Common
Stock", and together with the Class A Common Stock, the "Common Stock") (taken
together), then issued and outstanding. Any special meeting of the
stockholders shall be held on such date, at such time and at such place within
or without the State of Delaware as the Board of Directors or the officer
calling the meeting may designate. At a special meeting of the stockholders,
no business shall be transacted and no corporate action shall be taken other
than that stated in the notice of the meeting unless all of the stockholders
entitled to notice are present in person or by proxy and consent thereto, in
which case any and all business may be transacted at the meeting even though
the meeting is held without notice.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise provided in these
By-Laws or by law, a written notice of each meeting of the stockholders shall
be given not less than ten (10) nor more than sixty (60) days before the date
of the meeting to each stockholder
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entitled to vote at such meeting. The notice shall state the place, date and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
SECTION 4. QUORUM. At any meeting of the stockholders, the holders of
a majority in number of the total outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum of the stockholders for all purposes,
unless the representation of a larger number of shares shall be required by law
or by the Certificate of Incorporation, in which case the representation of the
number of shares so required shall constitute a quorum; provided that at any
meeting of the stockholders at which the holders of any class of stock of the
Corporation shall be entitled to vote separately as a class, the holders of a
majority in number of the total outstanding shares of such class, present in
person or represented by proxy, shall constitute a quorum for purposes of such
class vote unless the representation of a larger number of shares of such class
shall be required by law.
SECTION 5. ADJOURNED MEETINGS. Whether or not a quorum shall be
present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by proxy and entitled to vote at such meeting
may adjourn from time to time; provided, however, that if the holders of any
class of stock of the Corporation are entitled to vote separately as a class
upon any matter at such meeting, any adjournment of the meeting in respect of
action by such class upon such matter shall be determined by the holders of a
majority of the shares of such class present in person or represented by proxy
and entitled to vote at such meeting. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the stockholders, or the holders of any class
of stock entitled to vote separately as a class, as the case may be, may
transact any business which might have been transacted by them at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
SECTION 6. ORGANIZATION. The Chairman or, in his absence, the Chief
Executive Officer and President, the Chief Financial Officer and Vice President
- - Finance or any Vice President shall call all regular meetings of the
stockholders to order, and shall act as Chairman of such meetings. In the
absence of the Chairman, the Chief Executive Officer and President, the Chief
Financial Officer and Vice President - Finance and all Vice Presidents or in
the case of any special meeting, the holders of a majority in number of votes
entitled to vote at such meeting present in person or represented by proxy
shall elect a Chairman.
The Secretary of the Corporation shall act as Secretary of all regular
meetings of the stockholders; but in the absence of the Secretary or in the
case of any special meeting, the Chairman may appoint any person to act as
Secretary of the meeting. It shall be the duty of the Secretary of the
Corporation to prepare and make, at least ten (10) days before every meeting of
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stockholders, a complete list of stockholders entitled to vote at such meeting,
arranged in alphabetical order by class and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held,
for the ten (10) days next preceding the meeting, to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, and shall be produced and kept at the time and place of the meeting
during the whole time thereof and subject to the inspection of any stockholder
who may be present.
SECTION 7. VOTING. Except as otherwise provided in the Certificate of
Incorporation or by law, each stockholder shall be entitled to one (1) vote for
each share of the capital stock of the Corporation registered in the name of
such stockholder upon the books of the Corporation. Subject to the provisions
of the Certificate of Incorporation, each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. Except as
otherwise provided by law or by the Certificate of Incorporation each Director
shall be elected by a plurality of the votes cast at a meeting of stockholders
by the stockholders entitled to vote in the election and, whenever any
corporate action, other than the election of such Director, is to be taken, it
shall be authorized by a majority of the votes cast at a meeting of
stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Generally, the business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The
Directors shall, except as hereinafter otherwise provided for filling
vacancies, be elected at the annual meeting of stockholders entitled to vote
for said members of the Board of Directors and shall hold office until their
respective successors are elected and qualified or until their earlier
resignation or removal. Prior to the occurrence of a Qualifying Offering (as
defined in the Certificate of Incorporation), it shall be a qualification of
each member of the Board of Directors to be elected by the holders of the Class
A Common Stock that such member shall have been designated in accordance with
the procedures set forth in Section 5.1(a) of the Stockholders Agreement (as
defined below).
SECTION 2. REMOVAL AND VACANCIES. The stockholders may remove, with or
without cause, any Director and fill the vacancy thereby created; provided that
whenever any Director shall have been elected by the holders of any class of
stock of the Corporation voting
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separately as a class under the provisions of the Certificate of Incorporation
(i) such Director may be removed without cause and (ii) any vacancy resulting
therefrom may be filled, in the case of both clause (i) and clause (ii), only
by the holders of that class voting separately as a class. Prior to the
occurrence of a Qualifying Offering, the Board of Directors may not fill any
vacancies on the Board of Directors.
SECTION 3. PLACE OF MEETING. The Board of Directors may hold its
meetings in such place or places in the State of Delaware or outside the State
of Delaware as the Board of Directors from time to time shall determine.
SECTION 4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors from
time to time by resolution shall determine. No notice shall be required for
any regular meeting of the Board of Directors; but a copy of every resolution
fixing or changing the time or place of regular meetings shall be mailed to
every Director at least five (5) days before the first meeting held in
pursuance thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman or by any
two of the Directors then in office.
Notice of the day, hour and place of holding of each special meeting
shall be given by delivering the same at least two (2) days before the meeting
or by causing the same to be transmitted by telefax, cable or wireless at least
one (1) day before the meeting to each Director. Unless otherwise indicated in
the notice thereof, any and all business other than an amendment of these
By-Laws may be transacted at any special meeting, and an amendment of these
By-Laws may be acted upon if the notice of the meeting shall have stated that
the amendment of these By-Laws is one of the purposes of the meeting. At any
meeting at which every Director shall be present, even though without any
notice, any business may be transacted, including the amendment of these
By-Laws.
SECTION 6. QUORUM; MAJORITY BOARD VOTE.
(a) Subject to the provisions of Section 2 of this Article II, a
majority of the members of the Board of Directors in office (but, unless the
Board of Directors shall consist solely as one Director, in no case less than
one-third of the total number of Directors nor less than two (2) Directors)
shall constitute a quorum for the transaction of business and the vote of the
majority of Directors present at any meeting of the Board of Directors at which
an quorum is present shall be the act of the Board of Directors.
(b) If at any meeting of the Board of Directors there is less than
a quorum present, a majority of the Directors present may adjourn the meeting
from time to time.
SECTION 7. ORGANIZATION. Prior to the occurrence of a Qualifying
Offering, unless otherwise determined by the Board of Directors present at a
meeting at which a quorum is present, the Chairman shall preside at all
meetings of the Board of Directors and the Secretary of
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the Corporation shall act as Secretary of all meetings of the Board of
Directors; in the absence of the Secretary, the Chairman may appoint any person
to act as Secretary of the meeting. Upon and after the occurrence of a
Qualifying Offering, unless otherwise determined by a majority of the members
of the Board of Directors present at a meeting at which a quorum is present,
the Chairman shall preside at all meetings of the Board of Directors and the
Secretary shall act as Secretary of all meetings of the Board of Directors. In
the absence of the Secretary, the Chairman may appoint any person to act as
Secretary of the meeting.
SECTION 8. COMMITTEES.
(a) Committees, Generally. The Board of Directors may, by
Affirmative Board Vote (as defined in the Stockholders Agreement), designate
one (1) or more committees, each of which, (i) prior to the occurrence of a
Qualifying Offering, shall consist of one (1) Management Director, one (1) CVC
Director and one (1) Disinterested Director (as such terms are defined in the
Stockholders Agreement dated as of August 13, 1996 by and among the
stockholders of the Corporation and the Corporation (the "Stockholders
Agreement")), and (ii) from and after the occurrence of a Qualifying Offering,
one (1) or more of the Directors of the Corporation.
(b) Quorum. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors (so long as the
provisions of Section 8(a) are complied with) to act at the meeting in the place
of any such absent or disqualified member. Any such committee shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and the affairs of the Corporation, to the extent
provided by resolution passed by an Affirmative Board Vote, to the full extent
permitted by law.
SECTION 9. CONFERENCE TELEPHONE MEETINGS. Unless otherwise restricted
by the Certificate of Incorporation, by these By-Laws or by law, the members of
the Board of Directors or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors or such committee, as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
SECTION 10. CONSENT OF DIRECTORS OR COMMITTEE IN LIEU OF MEETING.
Unless otherwise restricted by the Certificate of Incorporation or by these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto
in writing and the writing or writings are filed with the minutes of
proceedings of the Board or committee, as the case may be.
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ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman, the Chief Executive Officer and President, the Chief Financial
Officer and Vice President Finance one or more Vice Presidents, a Secretary and
a Treasurer, and such additional officers, if any, as shall be elected by the
Board of Directors pursuant to the provisions of Section 7 of this Article III.
Except for the election of officers prior to the first annual meeting of the
stockholders, the Chairman, the Chief Executive Officer and President, the
Chief Financial Officer and Vice President Finance one or more Vice Presidents,
the Secretary and the Treasurer shall be elected by the Board of Directors at
its first meeting after each annual meeting of the stockholders. The failure
to hold such election shall not of itself terminate the term of office of any
officer. All officers shall hold office at the pleasure of the Board of
Directors. Any officer may resign at any time upon written notice to the
Corporation. Officers may, but need not, be Directors. Any number of offices
may be held by the same person.
All officers, agents and employees shall be subject to removal, with or
without cause, at any time by the Board of Directors. The removal of an officer
without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights. All agents and employees other than officers elected by the Board of
Directors shall also be subject to removal, with or without cause, at any time
by the officers appointing them.
Any vacancy caused by the death of any officer, his resignation, his
removal, or otherwise, may be filled by the Board of Directors, and any officer
so elected shall hold office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers of the Corporation
as set forth in these By-Laws, the officers shall have such authority and shall
perform such duties as from time to time may be determined by the Board of
Directors.
SECTION 2. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The
Chairman of the Board shall have the responsibility of guiding the Board of
Directors in effectively discharging its responsibilities, including, but not
limited to, providing for the execution of the Corporation's objectives;
safeguarding and furthering stockholders' interests; and appraising the
adequacy of overall results as reported by the President and the Chief
Operating Officer. He shall see that all orders and resolutions of the Board
of Directors are carried into effect and shall from time to time report to the
Board of Directors on matters within his knowledge which the interests of the
Corporation may require to be brought to the attention of the Board of
Directors. The Chairman of the Board shall preside at all meetings of the
Board of Directors and the stockholders at which he is present.
SECTION 3. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER AND
PRESIDENT. The Chief Executive Officer and President shall be the chief
executive officer and president of the Corporation. The Chief Executive
Officer and President shall be responsible for the management of the business,
affairs and operations of the
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Corporation. He may execute and deliver, in the name of the Corporation,
powers of attorney, contracts, bonds and other obligations and instruments.
The Chief Executive Office and President shall also perform all duties incident
to the office of the Chief Executive Officer and President and shall have such
other powers and perform such other duties as may from time to time be assigned
to him by the Board of Directors.
SECTION 4. POWERS AND DUTIES OF THE CHIEF FINANCIAL OFFICER AND VICE
PRESIDENT FINANCE. The Chief Financial Officer and Vice President Finance
shall be the chief financial officer and vice president finance of the
Corporation. He shall have all powers and perform all duties incident to the
office of Chief Financial Officer and Vice President Finance, and shall have
such other powers and perform such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE VICE PRESIDENTS. Each Vice
President shall have all powers and shall perform all duties incident to the
office of Vice President and shall have such other powers and perform such
other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. POWERS AND DUTIES OF THE SECRETARY. The Secretary shall
keep the minutes of all meetings of the Board of Directors and the minutes of
all meetings of the stockholders in books provided for that purpose; he shall
attend to the giving or serving of all notices of the Corporation; he shall
have custody of the corporate seal of the Corporation and shall affix the same
to such documents and other papers as the Board of Directors, the Chairman of
the Board, the Chief Executive Officer and President or the Chief Financial
Officer and Vice President Finance shall authorize and direct; he shall have
charge of the stock certificate books, transfer books and stock ledgers and
such other books and papers as the Board of Directors, the Chairman, the Chief
Executive Officer and President or the Chief Financial Officer and Vice
President Finance shall direct, all of which shall at all reasonable times be
open to the examination of any Director, upon application, at the office of the
Corporation during business hours; and whenever required by the Board of
Directors, the Chairman, the Chief Executive Officer and President or the Chief
Financial Officer and Vice President Finance shall render statements of such
accounts; and he shall have all powers and shall perform all duties incident to
the office of Secretary and shall also have such other powers and shall perform
such other duties as may from time to time be assigned to him by these By-Laws
or by the Board of Directors, the Chairman, the Chief Executive Officer and
President, or the Chief Financial Officer and Vice President Finance.R
SECTION 7. POWERS AND DUTIES OF THE TREASURER. The Treasurer shall
have custody of, and when proper shall pay out, disburse or otherwise dispose
of, all funds and securities of the Corporation which may have come into his
hands; he may endorse on behalf of the Corporation for collection checks, notes
and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depositary or depositaries as the Board of
Directors may designate; he shall sign all receipts and vouchers for payments
made to the
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Corporation; he shall enter or cause to be entered regularly in the books of
the Corporation kept for the purpose full and accurate accounts of all moneys
received or paid or otherwise disposed of by him and whenever required by the
Board of Directors, the Chairman, the Chief Executive Officer and President or
the Chief Financial Officer and Vice President Finance shall render statements
of such accounts; he shall, at all reasonable times, exhibit his books and
accounts to any Director of the Corporation upon application at the office of
the Corporation during business hours; and he shall have all powers and he
shall perform all duties incident to the office of Treasurer and shall also
have such other powers and shall perform such other duties as may from time to
time be assigned to him by these By-Laws or by the Board of Directors, the
Chairman, the Chief Executive Officer and President or the Chief Financial
Officer and Vice President Finance.
SECTION 8. ADDITIONAL OFFICERS. The Board of Directors may from time
to time elect such other officers (who may but need not be Directors),
including a Controller, Assistant Treasurers, Assistant Secretaries and
Assistant Controllers, as the Board may deem advisable and such officers shall
have such authority and shall perform such duties as may from time to time be
assigned to them by the Board of Directors, the Chairman, the Chief Executive
Officer and President or the Chief Financial Officer and Vice President
Finance.
The Board of Directors may from time to time by resolution delegate to
any Assistant Treasurer or Assistant Treasurers any of the powers or duties
herein assigned to the Treasurer; and may similarly delegate to any Assistant
Secretary or Assistant Secretaries any of the powers or duties herein assigned
to the Secretary.
SECTION 9. POWER WITH RESPECT TO OWNERSHIP OF STOCK. Unless otherwise
ordered by the Board of Directors, the Chairman, the Chief Executive Officer
and President or the Chief Financial Officer and Vice President Finance shall
have full power and authority on behalf of the Corporation to attend and to act
and to vote, or in the name of the Corporation to execute proxies to vote, at
any meeting of stockholders of any corporation in which the Corporation may
hold stock, or to execute any consent in lieu of such a meeting, and at any
such meeting or by any such consent shall possess and may exercise, in person
or by proxy, any and all rights, powers and privileges incident to the
ownership of such stock. The Board of Directors may from time to time, by
resolution, confer like powers upon any other person or persons.
SECTION 10. COMPENSATION OF OFFICERS. The officers of the Corporation
shall be entitled to receive such compensation for their services as shall from
time to time be determined by the Board of Directors.
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ARTICLE IV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. NATURE OF INDEMNITY. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a Director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by
reason of the fact that he is or was or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; except
that in the case of an action or suit by or in the right of the Corporation to
procure a judgment in its favor (1) such indemnification shall be limited to
expenses (including attorneys' fees) actually and reasonably incurred by such
person in the defense or settlement of such action or suit, and (2) no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. SUCCESSFUL DEFENSE. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Section 1 of this Article IV or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
SECTION 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 1 of
this Article IV
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(unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 1. Any indemnification of an employee or agent of
the Corporation under Section 1 (unless ordered by a court) may be made by the
Corporation upon a determination that indemnification of the employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1. Any such determination shall be made (i) by
the Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
SECTION 4. ADVANCE PAYMENT OF EXPENSES. Unless the Board of Directors
otherwise determines in a specific case, expenses incurred by a Director or
officer in defending a civil or criminal action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
Director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article IV. Such expenses incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may authorize the Corporation's legal
counsel to represent such Director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
SECTION 5. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director and officer who serves in any such capacity at
any time while these provisions as well as the relevant provisions of the
Delaware General Corporation Law are in effect and any repeal or modification
thereof shall not affect any right or obligation then existing with respect to
any state of facts then or previously existing or any action, suit, or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Director or officer.
The indemnification provided by this Article IV shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director or officer and shall inure to the benefit of
the heirs, executors and administrators of such a person. The Corporation may
enter into an agreement with any of its Directors, officers, employees or
agents providing for indemnification and advancement of expenses, including
attorneys' fees, that may change, enhance, qualify or limit any right to
indemnification or advancement of expenses created by this Article IV.
SECTION 6. SEVERABILITY. If this Article IV or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall
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nevertheless indemnify each Director or officer and may indemnify each employee
or agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgment, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to
the fullest extent permitted by any applicable portion of this Article IV that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
SECTION 7. SUBROGATION. In the event of payment of indemnification
to a person described in Section 1 of this Article IV, the Corporation shall
be subrogated to the extent of such payment to any right of recovery such
person may have and such person, as a condition of receiving indemnification
from the Corporation, shall execute all documents and do all things that the
Corporation may deem necessary or desirable to perfect such right of recovery,
including the execution of such documents necessary to enable the Corporation
effectively to enforce any such recovery.
SECTION 8. NO DUPLICATION OF PAYMENTS. The Corporation shall not be
liable under this Article IV to make any payment in connection with any claim
made against a person described in Section 1 of this Article IV to the extent
such person has otherwise received payment (under any insurance policy, by-law
or otherwise) of the amounts otherwise payable as indemnity hereunder.
ARTICLE V
STOCK-SEAL-FISCAL YEAR
SECTION 1. CERTIFICATES FOR SHARES OF STOCK. The certificates for
shares of stock of the Corporation shall be in such form, not inconsistent with
the Certificate of Incorporation, as shall be approved by the Board of
Directors. All certificates shall be signed by the Chairman and Chief
Executive Officer or the President and Chief Operating Officer or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and shall not be valid unless so signed. Any or all of
such signatures may be by a facsimile signature.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates had not
ceased to be such officer or officers of the Corporation.
All certificates for shares of stock shall be consecutively numbered as
the same are issued. The name of the person owning the shares represented
thereby with the number of such shares and the date of issue thereof shall be
entered on the books of the Corporation.
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Except as hereinafter provided, all certificates surrendered to the
Corporation for transfer shall be canceled, and no new certificates shall be
issued until former certificates for the same number of shares have been
surrendered and cancelled.
SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES. Whenever a person
owning a certificate for shares of stock of the Corporation alleges that it has
been lost, stolen or destroyed, he shall file in the office of the Corporation
an affidavit setting forth, to the best of his knowledge and belief, the time,
place and circumstances of the loss, theft or destruction, and, if required by
the Board of Directors, a bond of indemnity or other indemnification sufficient
in the opinion of the Board of Directors to indemnify the Corporation and its
agents against any claim that may be made against it or them on account of the
alleged loss, theft or destruction of any such certificate or the issuance of a
new certificate in replacement therefor. Thereupon the Corporation may cause to
be issued to such person a new certificate in replacement for the certificate
alleged to have been lost, stolen or destroyed. Upon the stub of every new
certificate so issued shall be noted the fact of such issue and the number,
date and the name of the registered owner of the lost, stolen or destroyed
certificate in lieu of which the new certificate is issued.
SECTION 3. TRANSFER OF SHARES. Subject to the provisions of the
Stockholders Agreement, shares of stock of the Corporation shall be transferred
on the books of the Corporation by the holder thereof, in person or by his
attorney duly authorized in writing, upon surrender and cancellation of
certificates for the number of shares of stock to be transferred, except as
provided in Section 2 of this Article IV.
SECTION 4. REGULATIONS. The Board of Directors shall have power
and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
SECTION 5. RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that if no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held, and, for
determining stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of
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Directors adopts a resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon
which the resolution fixing the record date is adopted. If no record date has
been fixed by the Board of Directors and no prior action by the Board of
Directors is required by the Delaware General Corporation Law, the record date
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation in the
manner prescribed by Article I. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by the
Delaware General Corporation Law with respect to the proposed action by written
consent of the stockholders, the record date for determining stockholders
entitled to consent to corporate action in writing shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, which dividends may be paid
either in cash, in property or shares of the capital stock of the Corporation,
but only out of funds available for the payment of dividends as provided by
law.
Subject to the provisions of the Certificate of Incorporation, any
dividends declared upon the stock of the Corporation shall be payable on such
date or dates as the Board of Directors shall determine.
SECTION 7. CORPORATE SEAL. The Board of Directors shall provide a
suitable seal, containing the name of the Corporation, which seal shall be kept
in the custody of the Secretary. A duplicate of the seal may be kept and be
used by any officer of the Corporation designated by the Board of Directors or
the Chairman and Chief Executive Officer and President.
SECTION 8. FISCAL YEAR. The fiscal year of the Corporation shall
be such fiscal year as the Board of Directors from time to time by resolution
shall determine.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. CHECKS, NOTES, ETC. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money
shall be signed and, if so required by the Board of Directors, countersigned by
such officers of the Corporation and/or other persons as the Board of Directors
from time to time shall designate.
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Checks, drafts, bills of exchange, acceptances, notes, obligations and
orders for the payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or persons as the Board of
Directors from time to time may designate.
SECTION 2. LOANS. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized so to do, any officer or agent of the Corporation
may effect loans and advances for the Corporation from any bank, trust company
or other institution or from any firm, corporation or individual, and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or
confined to specific instances.
SECTION 3. CONTRACTS. Except as otherwise provided in these By-Laws
or by law or as otherwise directed by the Board of Directors, each of the
Chairman and Chief Executive Officer and the President and Chief Operating
Officer shall be authorized to execute and deliver, in the name and on behalf
of the Corporation, all agreements, bonds, contracts, deeds, mortgages, and
other instruments, either for the Corporation's own account or in a fiduciary
or other capacity, and the seal of the Corporation, if appropriate, shall be
affixed thereto by any of such officers or the Secretary or an Assistant
Secretary. The Board of Directors or the Chairman, the Chief Executive Officer
and President or the Chief Financial Officer and Vice President may authorize
any other officer, employee or agent to execute and deliver, in the name and on
behalf of the Corporation, agreements, bonds, contracts, deeds, mortgages, and
other instruments, either for the Corporation's own account or in a fiduciary
or other capacity, and, if appropriate, to affix the seal of the Corporation
thereto. The grant of such authority by the Board of Directors or any such
officer may be general or confined to specific instances.
SECTION 4. WAIVERS OF NOTICE. Whenever any notice is required to be
given by law, by the Certificate of Incorporation or by these By-Laws to any
person or persons, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
SECTION 5. OFFICES OUTSIDE OF DELAWARE. Except as otherwise required
by the laws of the State of Delaware, the Corporation may have an office or
offices and keep its books, documents and papers outside of the State of
Delaware at such place or places as from time to time may be determined by the
Board of Directors, the Chairman and the Chief Executive Officer and President.
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ARTICLE VII
AMENDMENTS
These By-Laws and any amendment thereof may be altered, amended or
repealed, or new By-Laws may be adopted, by the Board of Directors at any
regular or special meeting at which a quorum is present by Affirmative Board
Vote, subject to the additional requirements as may be set forth in the
Certificate of Incorporation; provided that in the case of any special meeting
at which all of the members of the Board of Directors are not present, that the
notice of such meeting shall have stated that the amendment of these By-Laws
was one of the purposes of the meeting. These By-Laws and any amendment
thereof, may be altered, amended or repealed or new By-Laws may be adopted by
the holders of a majority of the total outstanding stock of the Corporation
entitled to vote at any annual meeting or at any special meeting for the
election of directors, provided, in the case of any special meeting, that
notice of such proposed alteration, amendment, repeal or adoption is included
in the notice of the meeting.
[End of By-Laws]
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